Close Election Hysteria: Let's Not Pick Our President In The Courts

The Obama campaign is running a new commercial in several battleground states reminding viewers of the 32-day drama over the Florida recount in 2000 that was ultimately resolved by the U.S. Supreme Court. The overt message of these ads is that every vote counts, but they also fan the embers of a hot reaction from Democrats when two “undemocratic” institutions--the Electoral College and the Supreme Court—in their view disenfranchised voters and improperly swung the election to George W. Bush over Al Gore in 2000.

There has been a sharp rise in electoral challenges since then and, with the polls showing the Obama-Romney race very tight in both popular and electoral votes, the specter of election recounts, or even an electoral tie vote has arisen. While it is highly unlikely, with 538 electoral votes available there is the possibility of a 269-269 tie, and specific electoral calculations show it could actually happen. In the case of such a tie when the electoral votes are cast in state capitals on December 7, the Constitution says the newly-elected House of Representatives elects the president, with each state delegation casting one vote, and the Senate elects the vice president. Crazy as it seems, under that scenario it’s even possible to end up with Mitt Romney as president and Joe Biden as vice president.

Both campaigns have teams of lawyers ready for legal challenges in various states, and lengthy recounts are more than a theoretical possibility. They have generally been avoided in the past only by the gracious concession of one of the candidates (Richard Nixon in 1960, John Kerry in 2004, etc.). But since 2000, preparing a legal team and drafting documents to challenge or defend the vote is the new normal.

We should look more deeply at the claim that the Electoral College is undemocratic and the desirability of an alternative—the National Popular Vote bill—that is likely to be pressed upon us if this close election ends up in any kind of controversy, including a candidate who wins the popular vote and loses the electoral vote, or a major recount, or the highly unlikely tie vote.

The Founders intentionally established a republic, not a pure democracy, and incorporated several checks and balances, and carefully balanced powers, to insure that the deliberate sense of the community would prevail. In Congress, for example, they established the people’s House of Representatives, based on population counts, but also the Senate based upon states. Similarly in the election for president, the Constitution provides for a popular vote for the people, but an electoral vote by state. So electoral voting—there is actually no reference to an “Electoral College” in the constitution—is part of the federalist system.

But beyond that are practical values to electoral voting. With important electoral votes at stake, candidates will spend the last couple of weeks campaigning all over the country—in Colorado and New Mexico in the West, Ohio and Michigan in the middle, in Florida, Virginia and New Hampshire in the East. By contrast, if there were only a popular vote, where would they be? Mostly on television, but also concentrated in a few big population centers such as New York or Los Angeles. And when we do have recounts in the electoral system, they are generally confined to one state. Imagine if we had a popular vote recount which would necessarily be national in scale? It would be a long national nightmare requiring months to confirm a president.

The National Popular Vote bill, which has been enacted in 9 states and could gain momentum with a rocky election aftermath this year, is not the answer. It is an end-run around the Electoral College, requiring each state that enacts it to cast its electoral votes for the candidate who won the national popular vote. It both undermines the Constitutional system and would reshape campaigns and increase recounts in unfortunate ways. But neither do extensive legal challenges generally improve the election, so let’s hope that we either have a clear outcome from election day, or that cooler heads resist the temptation to legal challenges.

Elections should be decided at the ballot box and in the Electoral College, not in courts or Congress. Clever end-runs may be fine in football, but not with the Constitution.

David Davenport is a research fellow at the Hoover Institution. Gordon Lloyd is a professor of public policy at PepperdineUniversity.